Tuesday, September 28, 2010

From the affidavits given by Mr Prashant Bhushan in contempt case against him, it is prima-facie evident that corrupt judges in SC have been spared only because many MPs do not want to sign on impeachment motions, since they have their own cases pending in SC!

So judiciary is independent of legislature, but legislators are not independent from judiciary!

Tuesday, September 14, 2010

Finally, Mr Moily has said something (he makes statements often) which has elements of rationality beyond making newer laws to fix problems. This should be considered by lawmakers who are ever ready to create new laws to tackle honour killings, and what else – supposedly under pressure from media and public.

Without the ability to execute on newly created laws, they are in danger of going the same way as of 38 lakh number of pending cheque bouncing cases. You are carrying a bounced cheque in one pocket? No problem… file a criminal case and carry the papers in another pocket!

With crores of cases pending in courts across the country, the Law Ministry has suggested that Law Ministry should make fresh laws only after assessing the extra burden they are likely to impose on the courts and ensuring the provision of money required for the purpose. "Assessment must be made for the purpose of estimating the extra load any new bill or legislation may add to the burden of courts and expenditure required for the purpose," Law Minister M Veerappa Moily has said in a letter to Finance Minister Pranab Mukherjee.

Nearly three crore cases are pending in courts (lower courts and higher judiciary) across the country, and the backlog is on a steady increase. According to government estimates based on 2009 figures, it takes 15 years on an average to finally decide a court case in India.

Moily's letter, based on the recommendations of the task force on Judicial Impact Assessment, says the government can anticipate the likely cost of implementing a legislation through the courts by a judicial impact assessment.

The task force, which based its findings on the research work by former Law Secretary T K Viswanathan, who is now Advisor in the Law Ministry, had recommended that it should be made mandatory to provide an estimate of the burden likely to be imposed on courts by every bill passed by Parliament or state legislatures.

In a similar letter recently, Moily had stressed the need for immediate setting up of special courts to deal with "surmounting" cases under Section 138 of the Negotiable Instruments Act. In that letter, also addressed to the Finance Minister, Moily had said that there are about 38 lakh cheque bouncing cases pending in the trial courts and this need to be speedily addressed by setting up special courts.

MUMBAI: With live-in relations being accorded sanctity by law, can a girlfriend be a relative, the Bombay high court wondered on Thursday. The court was hearing an application filed by a woman, Sunita, who had been named in a dowry harassment case. She had been dragged into the case filed by another woman, who claimed that Sunita was her husband's girlfriend and had accused her of cruelty.

A division bench of Justice A M Khanwilkar and Justice U D Salvi, in an interim order, stayed the criminal charges in the case against her till further orders.

Section 498 A of the Indian Penal Code deals with cruelty to a married woman by her husband or his relatives. The cruelty could also be for failing to meet the unlawful demands of property or valuable security. Cruelty could refer to the conduct of a husband or in-laws that is likely to drive a woman to commit suicide or cause grave injury to herself.

Earlier, the Supreme Court, in a landmark order, had said that a girlfriend cannot be treated as a "relative'' in a 498 A case. The apex court had held that a concubine or a mistress cannot be charged under Section 498A. By no stretch of imagination can a girlfriend or even a concubine... be a relative. The word relative brings within its purview a status that can be conferred either by blood or marriage or adoption, the SC bench had remarked.

Thursday, August 26, 2010

The only hope is that the ‘caught red-handed’ scenario does not later turn into ‘ no evidence found’ and the judges get reinstated. They are only suspended pending an inquiry, not really dismissed permanently!

HYDERABAD: Five judges belonging to the state's subordinate judiciary were suspended by the AP High Court on Wednesday for allegedly copying while writing their LLM examinations at the Arts College of Kakatiya University in Warangal on Tuesday.

The judges were doing this course under distance mode from Kakatiya University as the degree would help them gain some increments in their careers.

They were allegedly caught red-handed in the act of copying on Tuesday by the authorities and upon receipt of this information, the HC suspended them from service pending an inquiry. The HC would soon launch disciplinary proceedings against all these judicial officers, sources said.

NEW DELHI: The two sons of former chief justice of India Y K Sabharwal, who are being probed for their previous business deals, suddenly came to buy a Rs 122 crore property in Lutyens' Delhi four months ago, thanks to a series of controversial orders passed by the Delhi high court.

Chetan and Nitin Sabharwal, together with their partner Kabul Chawla, chief of real estate company BPTP, turned out to be the ultimate beneficiaries of high court orders passed since 2006 in connection with the auction of the 2.70-acre property at 7 Sikandra Road.

An appeal challenging the April 2010 sale deed revealed that the three partners had not participated in an auction in September 2006 on which a two-judge bench declared Triveni Infrastructure the highest bidder. Triveni was required to pay 25% of its bid amount, Rs 117 crore, within a week and the balance within three weeks thereafter, subject to the condition of the property being converted from leasehold to freehold.

But Triveni became liable to pay the 75% component only in February 2009 as it had taken so long for the property to be converted to freehold. It was then that a succession of single-judge orders, in breach of the schedule laid down by the larger bench, resulted in the payment being finally made, with a Rs 5 crore penalty, in April 2010, that too by the two Sabharwals and Chawla although they had no formal stake in Triveni.

The appeal being heard by a special bench headed by Justice A K Sikri shed light on the various ways in which the 2006 order had been bypassed, particularly by Justice Manmohan Singh, leading to a windfall for the Sabharwal brothers and Chawla:

* When the owners of the property filed a contempt application against Triveni for its failure to pay the balance in February 2009, Justice Manmohan Singh gave more time to the defaulter directing that it would have to pay Rs 3 crore by July-end and Rs 85 crore by October-end. Later, he extended the time further to December-end with a penalty of Rs 5 crore.

* The repeated extension of the deadline by Justice Manmohan Singh was contrary to the division bench's direction that if the highest bidder failed to make the payments on time, the property would have to be sold to the next highest bidder, Prime Commercial.

* In June 2009, Justice Manmohan Singh allowed a four-day old company, Angle Infrastructure, to come in place of Triveni for paying the balance and to take over the property. The owners of the property appealed against this order as it had been passed without any notice to them.

* A week before the expiry of the December 2009 deadline, Justice Manmohan Singh gave a fresh extension to Angle, this time by five months. He also granted Angle's request to introduce the condition that it would be required to pay the balance only when the owners were in a position to deliver immediate possession of the property. Most of the owners challenged this order, again because it had been passed without any notice to them.

* A month before the expiry of the May 2010 deadline, Triveni and Angle filed a joint application requesting that the balance be allowed to be paid by the Sabharwals and Chawla and that the property be registered in their names. Since the Sabharwal brothers and Chawla appeared in the court with demand drafts of the balance amount, Justice Rajiv Shakdher directed the owners on April 20 to execute the sale deed within two days.

That is how the Sabharwal brothers and Chawla acquired the property from an auction in which they had not participated at all. The appeal filed subsequently by the second highest bidder, Prime, challenged the manner in which the court had granted undue concessions to Triveni and deprived it (Prime) of its entitlement under the auction terms to buy out the property. Seeking a fresh auction of the Sikandra Road property, Prime offered to pay Rs 150 crore in keeping with the appreciation of the property value in these four years.

The real estate business partnership between the Sabharwal brothers and Chawla has been the subject of income tax probe following allegations that they had unduly benefited from the 2006 sealing drive against commercial properties in residential areas of Delhi launched by the then CJI, Justice Y K Sabharwal.

Cyriac Joseph, judge of the Supreme Court of India, on Friday came down heavily on the “unfair criticism” levelled against the judiciary and wondered why cultural leaders and institutions such as the Bar Association were silent on the issue.

Comments: Cultural leaders? … that’s a debate on its own. In India, there are religious gurus, political leaders, film stars, cricket leaders, some intellectual ‘leaders’ who debate with one another mostly or pat each other on the back. About Bar association: I bet they are lot more busy handling things like agitations or rowdyism by lawyers in court premises, or by one lawyers’ group against another, to be able to worry about such finer things!

Delivering the first K.K. Mathew Memorial Law Lecture series on the ‘Role of Judiciary in Democratic India,' organised as part of the centenary celebrations of the Kottayam Bar Association here, Mr. Joseph said the “abuse and intemperate outbursts” from any quarters were only a display of “ignorance of the constitutional provisions” as also a mark of “lack of culture.”

The people of India as represented by the Constituent Assembly had given shape to the Constitution and had “entrusted the judiciary with the responsibility of upholding the Constitution, constitutional values and constitutional institutions. Thus the people of India, through the Constituent Assembly, had assigned the role of a watchdog and corrective force for the judiciary in its functioning so that parliamentary democracy could flourish,” he said.

Comment: Public is tired of hearing the same old lectures given from a pulpit. With more than 3 crore pending cases, what justice and constitution are we talking about? Does not constitution say that speedy justice is a right of citizens?

“Judges think, speak and act in accordance with the provisions of the Constitution and cannot act like bull in a china shop,” Mr. Joseph said and added that whatever powers the judges have are derived from the Constitution. “They are not an unwanted, unauthorised group of people who wield self-acquired powers unaccounted for,” he said

Stating that unfair criticism of the judiciary would undermine democracy and the rule of law in the country, Mr. Joseph said India was ranked high internationally on account of its vibrant democracy which ensured elections every five years and the presence of an independent judiciary. “Independent judiciary is the hallmark of Indian democracy,” he said and added that the decision not to have an elected judiciary was a principled decision of the Constituent Assembly. “This does not make them less authentic,” he said and added that they are appointed on the basis of well laid out rules and guidelines.

Comment: This seems another attempt to stifle dissent against collegium based appointments in Supreme Court. When even a high court judge like Justice Shylendra Kumar raises voice, the SC is quite eager to shut him down with a judge having “tears in his eyes”. Of course they don’t have tears in eyes when a so called Chief Justice of Karnataka high court is barred from judicial functions by the lawyers themselves! After all, on paper he is Chief justice, and that is according to constitution so it must be all hunky dory!

“Judgments were not above criticism and any judgment could be subject to constructive criticism at an academic and intellectual level,” he said and stressed that judges who passed judgments that one does not agree with cannot be subjected to unfair criticism, abuse and ridicule. The Constitution provides for revision of judgments and the aggrieved parties should take recourse to such avenues, he said.

Comment: Except for the practical fact that taking recourse to revision or appeal is practicable for only well-heeled, powerful people.

“Unlike in a game of football, there is no provision to show the Red Card, though some believe that the provision for Contempt of Court was one such stipulation. “But, I fear even this would become ineffective if people are ready to go to jails,” he quipped.

Comment: So it is clear that there is so much widespread opposition to judiciary that even if contempt of court was used against public, the already struggling business in courts will grind to a halt!

Describing the late Justice K K Mathew, former judge of the Supreme Court of India, as a “saint among judges,” Mr. Joseph said he considered K.K. Mathew as the greatest jurist produced by Kerala.

Thursday, July 1, 2010

The interesting part of news is that the official of Jindal Steel and Power claim that they had given a shop to Agrawal’s son to dissuade him from raising environmental issues. So they are willing to engage in bribery if it serves their corporate interests?

The threat to kill company official makes it even more incredible? An activist threatening to kill an official of a large, powerful company? Makes sense to anyone?

The police complaint has shocked environmentalists. "This is exactly the tactic American Corporations have used to browbeat environmental activists," said Sunita Narain, Director, Centre for Science and Environment. She said this reminded her of SLAPP or Strategic Lawsuits Against Public Participation used by companies in America "to shut up individuals who were raising issues of social and environmental concern".

"Ramesh Agrawal of Jan Chetana is well known to the environmental and human rights fraternity. He has been raising issues related to not just a single corporation but several agencies on a very systematic basis," said Kanchi Kohli of Kalpavriksha Environmental Action Group.

Agrawal has a long series of achievements to his credit. In 2009, a PIL filed by him in Delhi High Court resulted in a major amendment to the rules governing environmental clearance. The court made it mandatory for companies to publish their full environmental clearance order in two local newspapers to enable the affected people to access the order and challenge the clearance if need be.

Ritwick Dutta, well known environmental lawyer, who has represented Agrawal in several public interest cases, asked, "Why has the company filed an FIR against Agrawal after MoEF acted against them? Why did it not go after him earlier?"

When asked why, Sanjeev Chauhan said, "We discussed the matter within the management. We were waiting for the right time". He added that the company "will definitely prove the allegations in court". Environmentalists say proving allegations against Agrawal will not disprove allegations against the company.

"The Ministry did not rely on Agrawal's word. Its team did due diligence and found Jindal Power had clearly broken the rules," says Narain.

Thursday, June 17, 2010

One of the major problems in Indian courts is the ease with which cases can be filed, the ease with which they get adjourned, and the relative difficulty with which costs or fines are imposed on frivolous or false litigation. If judiciary needs to restore faith, they will need to impose heavy fines on frivolous litigants and dilatory tactics. Else judiciary will remain a relief-giving mechanism who no one fears!

THE High Court imposed a fine of Rs 1 lakh on a petitioner for not pursuing the petition it had filed in 1999.

Justice DV Shylendra Kumar imposed the fine on Electronics Research Limited, which had challenged the custom duty of Rs 3.88 crore, citing that the Customs department had levied additional customs duty on it. The second additional city civil court had rejected the application, after which the petitioner had moved the High Court.

When the judge called the petitioner’s advocate for hearing, the junior advocate sought an adjournment.

Thursday, June 3, 2010

A bus conductor in UP was dismissed from service, for not remitting money to government for 25 passengers. Supreme court has upheld his dismissal from service.

Telecom minister Raja was involved in scam of 2G spectrum auction which resulted in loss of thousands of crores to government.

The message seems to be that one should be a minister, or judge in higher courts, to be able to escape all punishment and get immunity from charges of corruption. A high court judge need not worry about 15 lakh of cash kept at doorstep, but a bus conductor must worry about misappropriation of funds! These are the high standards judiciary wants to preach.

The apex court gave the judgement while upholding the dismissal of a bus conductor Suresh Chandra Sharma of the UP State Road Transport Corporation. Sharma was dismissed from service by the Corporation after a departmental inquiry held him guilty of collecting fares from about 25 passengers but not remitting them to the official exchequer.

The Uttaranchal High Court, however, had quashed the dismissal on the ground that the inquiry was vitiated as the authorities did not examine the passengers and ordered Sharma's reinstatement, but without any back wages.

Aggrieved by the order, both the corporation and the employee filed appeals in the apex court.

"Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant."

The apex court further cited the Vinod Kumar Vs UPSRTC case (2008) that "the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/misappropriation, the only punishment is dismissal."

The bench said that in a domestic inquiry, complicated principles and procedures laid down in the Code of Civil Procedure and the Indian Evidence Act need not be strictly adhered to.

"The only right of a delinquent employee is that he must be informed as to what are the charges against him and he must be given full opportunity to defend himself on the said charges.

"More so, the High Court is under an obligation to give not only the reasons but cogent reasons while reversing the findings of fact recorded by a domestic tribunal. In case the judgment and order of the High Court is found not duly supported by reasons, the judgment itself stands vitiated," the apex court added.

What was a new revelation was about the extent of funds available (Rs 13 Crore) to judiciary at their discretion, under aegis of Karnataka State Legal Services Authority, and the disclosure by Justice Kumar that he himself had to wait for 3-4 months to get information related to certain expenditures under category of ‘hospitality expenditures’ from the Karnataka high court registry!

The Legal Services Act 1987 is basically aimed to provide free and competent legal Service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.

Creating Legal awareness, Legal Aid and Settlement of disputes through amicable settlement are the main functions of the Authority.

Needless to say, it is an authority with mandate of delivering effective justice, and esp to help poor people who may not be able to afford lawyers.

Here are the relevant part of Justice Kumar’s blog post with important points in bold:

Recently, I heard that there were some malpractices, particularly, some illegalities having taken place in the matter of expenditure incurred by the High Court under the head ‘hospitality expenditure’, more so, during the stewardship of Justice P D Dinakaran as Chief Justice of the Karnataka High Court.

Being a little disturbed with such development, I had sought for some factual information from the registry and the information which I received has not put me at ease, but on the other hand has put me to great uneasiness and anxiety, particularly about the way and the direction which our High Court is heading.

I am placing the particulars of expenditure incurred as furnished by the registry for the information and perusal of the general public, an information which is otherwise available to you all under the Right to Information Act, and to form your own opinion and of course to react and respond suitably.

Under our constitutional scheme, judiciary does not have financial independence and the expenses in the judiciary is also part of the budgetary proposal and being voted by the State legislatures and the Union in the Parliament and therefore to that extent judiciary was blissfully kept independent of any financial responsibilities and the concomitant accountability with regard to expenses.

While that is the scheme under our Constitution, in recent times, with all sorts of additional responsibilities having sprouted on the courts, particularly, at the level of the High Courts and the Supreme Court and the High Courts and the Supreme Court getting more and more active on the administrative side, have been privy to considerable extent of State funds and whom the amount is being spent at the sole discretion of the Members of the Judiciary.

The checks and balances which are available under the Constitutional scheme and the statutory scheme in respect of any State expenditure, particularly, the scrutiny by the Comptroller and Auditor General of India under Article 148 of the Constitution of India is not fully or strictly applied in respect of expenditure incurred by the Judiciary in respect of funds which are available at the disposal of the Judiciary wherein the discretion of the Chief Justices matters. The State making available vast funds as part of the services made available to the general public under the Karnataka State Legal Services Authorities Rules, 1996 and being at the sole discretion of the Executive Chairman who is a Member of the Judiciary and Judge in the High Court, while has given considerable financial independence and capability to the Judge heading this Authority, the manner of utilization/application of such large amount has come in for criticism and over a period of time, the public opinion is that Judges are most ill suited to occupy the position of a Executive Chairman of the Legal Services Authority and it should be looked after by other persons who do not have the onerous judicial responsibilities to discharge.

Well, opinions may differ, but the fact remains that Judges becoming privy to large or vast amounts has not been a healthy trend if one should look at the developments during the past two decades and it certainly calls for a debate, a rethinking and suitable changes if so felt and warranted.

I learnt that Karnataka State Legal Services Authority had received not less than Rupees Thirteen Crores for its annual expenses during the year 2009-10 and I was not very happy with the manner of the funds allocated to expenditure of this Authority and I had called for information about the same when I was serving at the Circuit Bench of the High Court at Gulbarga during November-December 2009.

It took more than three to four months for the Member Secretary of the Karnataka State Legal Services Authority to part with this information even to a Judge of the High Court and it is only with some pressure and threats I was able to get the information. This again is not a very healthy development, particularly, if persons who are entrusted with public funds are asked for accounting the same, it should be available at a minute’s notice and at fingertips, and not furnished after three months like some Judges, declaring the particulars of their assets and liabilities!.

Friday, May 28, 2010

This was bound to happen… The image of judiciary has taken a severe beating in last few years. Now even Supreme Court is concerned that at least judges don’t throw mud at their own brethren. It is difficult enough when public is doing it! News below:

The Supreme Court has cautioned the High Courts against using intemperate language and passing castigating strictures on judges of the lower judiciary. For, doing so would diminish the image of judiciary in the eyes of the public.

A vacation Bench of Justices G.S. Singhvi and C.K. Prasad, quoting earlier judgments, stressed the need for the High Courts adopting the utmost judicial restraint against using strong language as in such matters the judicial officer concerned had no remedy in law to vindicate his position.

The Bench allowed an appeal filed by a senior judicial officer against certain observations made by the Andhra Pradesh High Court. The Bench expunged them, holding that these remarks were bound to adversely affect the appellant's image in the eyes of the public and his credibility as a judicial officer, and would also affect his career.

As Principal District Judge, Kadapa, the appellant granted a temporary injunction in favour of plaintiffs in a suit and restrained the defendants from interfering with the plaint schedule property.

On an appeal by the defendants, a Division Bench of the High Court set aside the order and made scathing criticism of the appellant as a judicial officer, and recorded highly disparaging remarks.

Allowing the appeal by the judicial officer for expunction of the remarks, the Supreme Court said: “The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other.”

Judicial authoritarianism

It said: “The Division Bench of the High Court may be fully justified in setting aside the order of injunction, but there was absolutely no justification for its making highly disparaging remarks against the appellant as a judicial officer, casting doubts on his ability to decide the cases objectively. The use of the words ‘out of sheer arrogance and disrespect to the lawful order' and the expression ‘judicial authoritarianism' show that the Division Bench ignored the words of caution administered by this court in several judgments.”

Wednesday, May 26, 2010

Chandigarh, May 22 The Punjab and Haryana High Court has as many as 16 Judges with their kith and kin practising in the same court. The Chief Justice of the Punjab and Haryana High Court has already forwarded their list to the Union Ministry of Law and Justice.

The list was sent in response to a communication received by the high court from the ministry. In the beginning of this year, the ministry had asked the high courts across the country to identify and furnish the list of all such judges who have their kith and kin practising in the same court.

Available information suggests that some of the judges here not only have their sons, daughters but also their siblings and other relations like nephews and brothers-in-law practising in the same court. At least four judges have their relatives working in the office of the Punjab and Haryana advocates-general office. Some other judges have relatives appearing before the Bench in the same court.

The issue again gained momentum only recently after Union Law Minister Veerappa Moily told The Tribune in an exclusive interview that the Law Ministry was asking the judges to give an undertaking at the time of their elevation that they would not function in a court where their relatives were practising.

Moily’s assertion had come in the presence of Attorney-General Goolam E. Vahanvati, Additional Solicitor-General Mohan Jain and Haryana Chief Minister Bhupinder Singh Hooda at a ceremony to felicitate the law minister.

The Law Commission has discussed the issue in its 230th report as well. The commission has made it clear that it is against the policy of transferring Chief Justices; and he should rather be from the same high court. But while making appointment of judges, advocates with kith and kin practising in a high court, should not be posted in the same high court. This would eliminate “uncle judges”, it said.The Punjab and Haryana High Court’s former chief justice, Justice B. K. Roy, too had earlier issued an administrative order barring a group of 10-12 judges from hearing any case argued by their relatives. In his order, Justice Roy had said: “It was generally believed that A, B, C and D (all judges) constituted a mutual cooperative society in the sense it was believed that each of the four judges (A, B, C and D) would protect the sons of the three other judges.” The order had led to widespread protests.

A man who was declared an absconder by a court in Indore worked as a judge in a superior court in the same city for years before his past caught up with him.

The Madhya Pradesh High Court has suspended Additional District and Sessions Judge Narendra Kumar Jain for concealing the matter.

As a student of Christian College in Indore, Jain, along with four friends, was involved in a brawl with a hotel owner and his son in 1983. The owner, whose nasal bone was broken, lodged a police complaint that led to the arrest of Jain and his friends.

Jain was released on bail and appeared in court once in 1985. He was declared an absconder by the court when he did not appear later despite repeated summons.

Jain cleared an examination meant for judicial officers in 1994 but suppressed the fact that he was involved in a criminal case and was facing trial.

Friday, May 14, 2010

Such is the secrecy and protection afforded to powerful vested interests who control the judiciary from behind, that no case of judicial corruption can ever be investigated thoroughly and properly. Read news below:

A Gurumurthy, the judge in whose court a scam involving court officials, banks and financial institutions to the tune of hundreds of crores of rupees was unearthed, has been transferred.

Though transfers are routine, with four notifications on April 24 transferring District Judges, Fast Track Court Judges, Senior Civil Judges and Civil Judges, this transfer comes just three weeks after a departmental inquiry under the judge was initiated.

Gurumurthy, the XIV Additional Chief Metropolitan Magistrate (Mayo Hall), is one of the 33 judges of the ‘Senior Civil Judges’ cadre who has been transferred, according to the notification (no GOB(I).4(2)/2010) issued by the Registrar General of the High Court. The notification says he will take charge as the Senior Civil Judge and JMFC, Ramdurg, Belgaum district, from May 24.

PROBE CURTAILED It is feared that with the transfer of the judge, the departmental inquiry would suffer. It is learnt nearly a month after the inquiry was initiated in the first week of April, Gurumurthy submitted his report. But the same was sent back to him with directions for further probe. Now with less than two weeks for his transfer, Gurumurthy’s report may not be complete as the XIV ACMM has more than one lakh cases before it, according to sources.

Registrar General of the High Court, R B Budihal refused to talk about the issue. His office replied he would not entertain any journalist seeking information on the issue.

Bangalore Mirror had, on May 4, reported how thousands of citizens were cheated using fake seals of judges’ signatures and fake court papers for serving non-bailable warrants (NBW) on them.

Some 70,000 fake NBWs were said to have been issued in the last three years to people across the country.

Three officials of the court - Tulasamma, the sirastedar, Balasubramani, the bench clerk, and Narasaiah, a case worker, who allegedly ran a ‘parallel court’ in collusion with banks and their advocates, were suspended.

Banks and court staff colluded to issue NBWs to borrowers whose cheques had bounced. After these fake NBWs were issued, the banks, either with the help of police or musclemen, forced the debtors to pay up the entire loan amount.

As per the law, no sworn statement of any bank manager has been recorded. The fraud also involved sending fake NBWs to people who were not under the jurisdiction of the court, including Kolkata, Mumbai, Allahabad and Bihar.

Tuesday, May 11, 2010

Maybe it is coincidence, but two days before retirement of CJI, the office of CJI has been agreed to be a Public Authority under RTI Act. See recent decision by CIC below. Also the important points are made bold below:

Facts: Shri Nemi Chand Jain of Jaipur, Rajasthan applied to the Registrar, Supreme Court of India on 27.11.08 seeking the following information: “Copy of complete file relating to complaint dated 2.4.2007 against Justice Shri Shiv Kumar Sharma, Rajasthan High Court, Jaipur.” To this Shri Nemi Chand Jain received a response from CPIO Shri Raj Pal Arora, Addl. Registrar dated 18.12.08 informing him as follows: “I write to inform you that the complaints against Hon’ble Judges of the High Court or Supreme Court are not handled by the Registry. Therefore, the information is not held by or under the control of the Registry and the CPIO, Supreme Court of India cannot accede to your request.”

Aggrieved, Shri Nemi Chand Jain moved an appeal on 30.12.08 before Appellate Authority, Supreme Court of India on the following grounds: “As per Section 6(3) of the RTI Act the Learned CPIO should have transferred the application within five days to the concerned public authority with whom the information is available and inform the Appellant / Applicant.”

Upon this, Appellate Authority Shri M. P. Bhadran in his order of 17.1.09 in appeal No. 2 of 2009 decided as follows: “Since the Hon’ble CJI is not a Public Authority within the meaning of Sec. 2(h) of the RTI Act the application cannot be transferred as per Section 6(3) of the RTI Act as requested by the appellant. I find that no error in the impugned order. There is no merit in this appeal and it is only to be dismissed.”

Appellant Shri Jain has then moved his second appeal before us with the following prayer: “It is prayed that the impugned order dated 17.1.09 passed by Learned Appellate Authority and order dated 18.12.2008 passed by Learned CPIO may kindly be quashed and set aside, and the Learned CPIO may be directed to transfer the application to the appropriate Authority with whom the information sought by Appellant is available.”

This prayer is grounded on the following contentions: “Because the Hon’ble CJI is Public Authority within the meaning of Section 2(b) of the RTI Act and hence the impugned order is liable to the set aside.”

The appeal was heard by videoconference with Jaipur on 10.5.2010. The following are present:

Shri Devadatt Kamat, Learned Counsel for the Supreme Court presented his vakalatnama, which has been taken on record. Shri Kamat also submitted that subsequent to the decision in the present case, it has been agreed by the Supreme Court of India that the Office of Chief Justice of India is indeed a public authority within the meaning of sec. 2(h) of the RTI Act. In light of this, the information sought by appellant Shri Nemi Chand Jain was that the complaint of 2.4.07 against Justice Shri Shiv Kumar Sharma of the Rajasthan High Court, Jaipur had in fact been received, seen by the Chief Justice of India and lodged. There is no file on the complaint. Upon this, appellant Shri Nemi Chand Jain submitted that he had no further information to seek.

DECISION NOTICE

It is now established and agreed to by all parties that the office of Chief Justice of India is a Public Authority within the meaning of Sec. 2(h) of the RTI Act, as part of the Supreme Court of India. The order of Appellate Authority, Shri M. P. Bhadran on appeal No. 2 of 2009 dated 17.1.09 is, therefore, set aside. Learned Counsel for the Supreme Court of India has also provided the information sought by appellant Shri Nemi Chand Jain, in the hearing. The appeal is thus allowed. There will be no costs.

Announced in the hearing. Notice of this decision be given free of cost to the parties. (Wajahat Habibullah) Chief Information Commissioner 10.5.2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission. (Pankaj K.P. Shreyaskar) Joint Registrar 10.5.2010

Hyderabad, May 10: The Governor, Mr ESL Narasimhan, condemned the misuse of the Right to Information (RTI) Act by some people, who have “vested interests”.

He said the RTI Act has become a tool to “blackmail” the government and its machinery.

“I can say with complete authority that the RTI Act is used for blackmailing people. If that was not the case, why do the same group of people apply for the RTI Act so often,” he asked while speaking at the Administrative Staff College of India, after inaugurating the Forum for Good Governance.

Ok. The logic is that if some people file RTI so often, they must be using it for blackmail! Well, governor ji, maybe you forget but the 86 year old ex-governor of Andhra Pradesh had left his office few months back after some pictures of his romps with young women were shown on TV. Such was the secrecy after that event that the media was stopped by High court order to show any further footage etc of the episode. When government along with judiciary is hell-bent on stopping people from knowing what is going on within government, RTI is the only forum available for people to find out the truth behind government’s inner workings.

Citing his own experiences on the misuse of the Act, Mr Narasimhan said: “I receive RTI applications that seek information on the dinner I hosted for my guests. They ask me to disclose the guest-list, the menu and the expenditure incurred for the purpose.” He said is not spared even when he visits temples. “The other day, I went to a temple. A person filed an RTI seeking information about whether my visit to the temple was an official visit? If so, who did I meet and what was the discussion? I replied that it was not an official visit. I met the Almighty at the temple and had long deliberations with him. I also prayed to him to please give good sense to such people,” he remarked.

You may think it is irritating to get RTIs about your dinners. But do not forget that people have very little faith in about people in government regarding use of taxpayer funds at their disposal. Even an ex-minister Shashi Tharoor was found to be staying in 5-star hotels instead of finding a more reasonable accommodation given the austerity drive of government in place at the time. If government was more transparent of less cruel with public money, people will have no desire to waste their time in filing RTIs asking about dinners hosted by you. That trust has yet to be built by government representatives.

Monday, May 10, 2010

The judges seem to be toothless in face of misuse of law! Such misuse of laws is the real reason behind 3.1 crore pending cases in Indian courts. When there is incentive to misuse the law, and no disincentive against it; more number of cases is exactly the result. While truly affected people fear going to courts, those who want to misuse the law are feted by lawyers, and indirectly by judiciary!

Married sisters of a man, living separately from the joint family, cannot be prosecuted under the Domestic Violence (DV) Act on a complaint of his wife, a Delhi court has held.

Additional Sessions Judge Kamini Lau expressed concern over “misuse” of special laws by making women parties in the petitions just because they happened to be sisters of the man.

“Married sisters residing in their own matrimonial houses are not a part of the shared household or joint family, as contemplated under the Domestic Violence Act,” the court said.

It, however, clarified that the married sisters were not denied the rights, which could be claimed from their parental home.

The observations were made by the court while dismissing the plea of a woman who challenged an order of the Metropolitan Magistrate, refusing to summon married sisters of her estranged husband in the case under the Domestic Violence Act.

The following statements by outgoing Chief Justice of India will not have many believers, except maybe in Supreme Court itself! The last sentence is really bothering, if people do not understand working of judiciary, is it really a good thing? Won’t it be good to have judiciary under ambit of RTI -- I know it already is except Supreme Court, but just try filing an RTI on any court and see for yourself.

Outgoing Chief Justice K G Balakrishnan says corruption in judiciary was a cause of concern but the situation was "not very serious" and that it was actually "miniscule" considering the number of cases and judges.

"Corruption will always bother anyone. But considering the number of cases and judges, it is actually miniscule.

Situation is not very serious," the CJI said in an interview to CNN-IBN on Monday on the eve of demitting office after a tenure of a little over three years.

However, the CJI appeared to be haunted by Justice Dinakaran issue and expressed his disappointment over the motive even imputed to him on this score while maintaining that the apex court collegium/ judges work systematically in harmony with the norms.

"I felt sorry that some motives were attached to me as well. We work systematically following all the norms," he said.

On being asked whether the credibility of judges did not get erosioned as a number of them accept government posts after their retirement, he said it was the government which wants us there.

"There are so many tribunals that have to be manned by retired judges of the Supreme Court. There is TDSAT etc.

People think that SC judges may favour the government to get these posts, but now actually its other way. The government wants us there," the CJI said.

The CJI, who recently gave verdict on high-voltage Ambani brothers gas dispute, said that he never felt any pressure while adjudicating any case.

"I have never felt any pressure in any case that I have heard," he said adding that "people do not understand the working of judiciary. No politician will like to come and meet a judge. He will be in trouble, suppose the judge expose him, his political career can be in danger."

Sunday, May 9, 2010

It is not only the Chief Justice of India who wants his own office out of purview of RTI. Even some of high courts are quite uncooperative about honouring RTI.

Following news story sums it all. When it comes to implementation of right to information act (RTI), the courts are totally clueless and unhelpful to applicants. The fact that this happened with a high court bench shows the high-handedness and aloofness which has become a characteristic of Indian judiciary.

M. Shanthi of Karur had filed an RTI application on February 25 seeking details of a civil miscellaneous appeal filed by an insurance company in 2001 against a judgment passed by a lower court earlier. Stating that the case was not listed for hearing for a long time, she sought to know whether it was still pending or had been disposed of.

N. Vijayakumar, Deputy Registrar (Administration) of the Bench and also Assistant Public Information Officer, replied to the application on March 3. Instead of giving a direct answer to the question, he asked the woman applicant to approach her advocate for obtaining the required information.

Not satisfied with the reply, Ms. Shanthi filed an appeal, under the RTI Act, before the Registrar (Administration) of the High Court Bench on March 13, 2010.

Subsequently, she received another letter from R. Susheela Devi, Deputy Registrar (RTI) dated March 31 asking her to come to the Bench during office hours at the earliest for verification of her residential address and signature.

The issue gains significance in view of the fact that there is no provision in the RTI Act which entitles a public information officer to ask an applicant to prove his/her identity. Section 6(2) of the Act categorically states a person seeking information need not give any personal details except those that were required for contacting him.

Section 6(2) of RTI Act, 2005 is given below:

(2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

The only main requirement in RTI Act is that applicant be a citizen of India. Even an Indian living abroad can file an RTI through Indian embassy. But by asking the applicant to come personally to office, the RTI official of high court has shown either their incompetence, or their complete disregard for law of the land.

Thursday, May 6, 2010

Bangalore Mirror has broken a story which shows how corruption is seeping right through Indian judiciary. The Provident Fund scam was involved with high court judges and a supreme court judge too. The case below involves court officials but not judges.

So there is taint of corruption in courts right from Supreme court to lower courts… corruption has become the great leveller in Indian judiciary.

When an EMI cheque bounces, the bank and its advocates get into the act by getting forged documents and NBWs out of the ‘parallel court’ operating at the court.

Then, the bank sends its musclemen or takes the help of the police to confront the ‘accused’ with fake warrants. After threatening the debtor, they recover the entire loan amount, and not just the EMI.

This is against the procedure laid down under Section 138 of the Negotiable Instruments Act, 1881. No sworn statement of the bank manager is recorded nor is any sworn statement taken in any of these cases.

Another major fraud is that most of the accused are not in Bangalore. Many live in cities like Kolkata, Chennai, Hyderabad, Mumbai, Allahabad, and in remote corners of Jharkand and Bihar. The story unfolded after many such harassed customers complained to the court, sources said.

NO JURISDICTION The law says a Bangalore court cannot have jurisdiction on an offence committed outside the city.

The truth is, none of these accused had even visited Bangalore before. So, there was no question of the XIV ACMM having jurisdiction over these people.

The scam has shaken the judiciary in Karnataka. One source told this journalist that an advocate had filed 30,000 such cases allegedly on behalf of Cholamandalam DBS Finance in the last six months. An advocate reportedly representing Kotak Mahindra Bank has filed around 10,000 fake cases in the last six months.

The preliminary inquiry has revealed that advocates representing many banks, in collusion with court staff, have created their fake stationery for preparing the orders.

These orders don't have the date of execution nor are the so-called signatures supported by dates. A closer look at the order sheets reveals that they have been faked.

XIV ACMM A Gurumurthy refused to meet the Bangalore Mirror team when we said we wanted to get details from him.

All this seems very nice and good on paper, but it has to be seen in practice why a cheque defaulter would not like to pay up to maximum 20% of principal amount, and delay the case till it reaches Supreme Court.

NEW DELHI: Delay in settling cheque bounce cases will now cost the defaulter dear, up to 20% of the cheque amount. The penalty for delayed settlement of the cheque amount, after conviction in the trial court, would rise steadily from 10% in district courts, 15% in high courts to a whopping 20% in the Supreme Court.

The SC on Monday took this radical step through a pioneering judgment which aims to curb the tendency among defaulters to sit over the amount tendered through a bounced cheque.

Saddled with 30 lakh cheque bounce cases, the SC accepted most of the suggestions offered by attorney general G E Vahanvati.

A Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal also laid down guidelines for early settlement in cheque dishonour cases under Section 138 of the Negotiable Instrument Act.

The judgment, authored by Chief Justice K G Balakrishnan, indicated that defaulters going for early settlement before the trial court would have to pay just the principal amount with applicable interest.

But if they approched the district court for settlement after being convicted by the trial court, they would have to pay 10% of the cheque amount to avoid going to jail. So if a chque amount is for Rs 1 lakh, then to compound the offence before the district court, the defaulter has to pay an additional Rs 10,000 to avoid going to jail.

Similarly, if the defaulter agrees for settlement and compounding of the offence at the HC stage, then he would have to pay 15% of the cheque amount. The amount so collected would be given to Legal Aid Authorities of the respective states which provide free legal assistance to poor litigants in various forums, the SC said.

This judgment will go a long way in reducing the pendency of over 30 lakh cheque bounce cases which have jammed the wheels of justice already slowed down by pendency of 2.7 crore cases. During the hearing of a Section 138 case between Damodar S Prabhu and Sayed Babalal, the Bench observed that there had been an enormous rush of cases after cheque bounce was made a penal offence in 1989, followed by the amendment in 2002 providing for summary trial for early resolution of the dispute.

The last line is the giveaway, there was enormous increase in cheque bounce cases AFTER it was made a penal offence in 1989. Normally, one would expect that a criminal penalty for an offence would deter people from committing that offence. It is clear that justice in India does not work the way it is supposed to be! There is a huge latent demand for justice, and it does not seem to be satisfied no matter how many new laws get created.

Monday, May 3, 2010

Only in India if a High court judge gets Rs 15 lakh cash delivered at door, the powers that be will look the other way! Now it seems the law ministry is siding with CPIO of Supreme Court on the matter of disclosure of information under RTI. If CJI was not enough in holding lid on happenings inside Supreme Court, now law ministry is backing him up as a spokesperson.

Yadav is mired in a controversy related to the scam in which Rs15 lakh was recovered from outside the door of her official residence nearly 19 months ago.

On Sunday, the law ministry defended CPIO, saying the CJI input on Yadav was indeed confidential and could not be made public. CPIO had told Shukla that his query, whether CBI approached CJI in connection with the scam, was “confidential and exempted from disclosure under section 8(1)(e) and (j) of the RTI Act”. “You have no right to access the said information,” CPIO said.

The ministry, which has been working hard to introduce certain amendments in the RTI Act, which Congress president Sonia Gandhi has termed “landmark”, said the CJI input to law minister Veerappa Moily on the issue was “in the nature of advice tendered by the cabinet” which is exempted from disclosure under the RTI Act.

The ministry cited section 8(1)(i) of the Act in its defence. The section exempts “disclosure of cabinet papers, including records of deliberations of the council of ministers, secretaries and other officers”, provided “the decisions of the council of ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete”.

Meanwhile, in a setback to the moves by a section in the government to put a lid on the scam, a special court in Chandigarh refused last Friday to accept the CBI plea for closing the case. Judge Darshan Singh asked CBI to probe the case further.

Though enacting the law is a step towards ratification of the UN convention against other cruel, inhuman punishment and degrading treatment, and has been pending for some time now, the timing of the bill gave rise to a question or two at the Cabinet meeting.

The argument was clinched as the PM pointed to the need for a law that underscored India's respect for human rights even as the government had promised to bring to book those guilty of killing 76 security personnel in a ruthless ambush on Tuesday. Singh has been particular that a detailed law be enacted to define torture, both physical and mental, that would attract penal action.

The proposed law has been hanging fire as over the past year, it was first suggested by home ministry that some changes in IPC would suffice. It was then argued that changes in the Evidence Act would also be needed. As it was felt that no less than three-four laws would have to be altered, the PM went along with a new law being framed.

The prevention of torture law is intended to align Indian law with the UN convention and India is now only one of a handful of signatory nations not to do so. The ratification of the convention will enable provisions in the convention to be part of Indian law. Though some of these exist in Indian law, they do not define "torture" as closely as the convention does.

The last para gives the probably most important reason that this law is being pushed. India does not want to be seen living in a ‘brutal’ image when all other countries have well-defined laws against torture and police brutality. Recent beating and torture of a foreign journalist has not helped either the ‘clean image’ India wants to project to international community.

Mission Justice has made a presentation on corruption, lack of accountability, lack of transparency, and so on in high judiciary of the country. The presentation is a clear eye-opener for those who still have faith that all is well with High Courts and Supreme Court in India.

The Federation of Bar Association (FOBA) has submitted a memorandum to CM B S Yeddyurappa asking him to spare lawyers from wearing helmets during summer. FOBA president K S Subba Reddy claims advocates find it very difficult to wear helmets from March to June even though the helmet rule is in the interest of a two-wheeler driver’s safety.

He adds, “It is very difficult, particularly for women advocates who have to compulsorily wear black coat and gown to attend the court. They must drive with the coat and gown, besides wearing the helmet.” Wearing a helmet is excruciating when vehicles are caught in heavy traffic and move very slowly, he added

Ok… so they want exception from helmet rule which is made in interest of safety of public. Normally one should have the freedom to decide how they run their own lives, but such safety rules are made because there are social costs too if the rate of injuries and deaths are higher.

Will the lawyers waive off their rights to claim accident compensations too in case the injuries and death when not hearing a helmet?

More importantly, if the lawyers are feeling uncomfortable due to heavy coat/gown along with helmet; isn’t it better to jettison that black coat for the 3 summer months? Whoever devised the rule that lawyers must wear black coats did not take tropical conditions into account.

What is more logical and reasonable: stop wearing black coat, OR stop wearing helmet? I hope some reasonable man stands up and makes a law doing away with need of black coats for lawyers.

Friday, April 30, 2010

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 913 of 2010 [Arising out of SLP (Crl.) No. 4010 of 2008] S. Khushboo … Appellant Versus Kanniammal & Anr. ... Respondents WITH Criminal Appeal 914/2010 @SLP (Crl.) No. 6127 of 2008 Criminal Appeal 915/2010 @SLP (Crl.) No. 6257 of 2008 Criminal Appeal 916/2010 @SLP (Crl.) No. 6258 of 2008 Criminal Appeal 917/2010 @SLP (Crl.) No. 6259 of 2008 Criminal Appeal 918/2010 @SLP (Crl.) No. 7049 of 2008 Criminal Appeal 919/2010 @SLP (Crl.) No. 6264 of 2008 Criminal Appeal 920/2010 @SLP (Crl.) No. 6277 of 2008 Criminal Appeal 921/2010 @SLP (Crl.) No. 7052 of 2008 Criminal Appeal 922/2010 @SLP (Crl.) No. 7053 of 2008 Criminal Appeal 923/2010 @SLP (Crl.) No. 7050 of 2008 Criminal Appeal 924/2010 @SLP (Crl.) No. 7051 of 2008 Criminal Appeal 925/2010 @SLP (Crl.) No. 4761 of 2008 Criminal Appeal 926/2010 @SLP (Crl.) No. 4772 of 2008 Criminal Appeal 927/2010 @SLP (Crl.) No. 4767 of 2008 Criminal Appeal 928/2010 @SLP (Crl.) No. 4763 of 2008 Criminal Appeal 929/2010 @SLP (Crl.) No. 4765 of 2008 Criminal Appeal 930/2010 @SLP (Crl.) No. 4762 of 2008 Criminal Appeal 931/2010 @SLP (Crl.) No. 4764 of 2008 Criminal Appeal 932/2010 @SLP (Crl.) No. 4770 of 2008 Criminal Appeal 933/2010 @SLP (Crl.) No. 4769 of 2008 J U D G M E N T Dr. B.S. CHAUHAN, J 1. Leave granted in all the cases. 2. The appellant is a well known actress who has approached this Court to seek quashing of criminal proceedings pending against her. As many as 23 Criminal Complaints were filed against her, mostly in the State of Tamil Nadu, for the offences contemplated under Sections 499, 500 and 505 of the Indian Penal Code, 1860 [hereinafter ‘IPC’] and Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 [hereinafter ‘Act 1986’]. The trigger for the same were some remarks made by the appellant in an interview to a leading news magazine and later on the same issue was reported in a distorted manner in another periodical. Faced with the predicament of contesting the criminal proceedings instituted against her in several locations, the appellant had approached the High Court of Madras, praying for the quashing of these proceedings through the exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973 [hereinafter ‘Cr.PC.’]. The High Court rejected her plea vide impugned judgment and order dated 30.4.2008. At the same time, in order to prevent the inconvenience of

litigating the same subject-matter in multiple locations directed that all the cases instituted against the appellant be consolidated and tried together by the Chief Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the aforesaid judgment, the appellant approached this Court by way of a batch of Special Leave Petitions. 3. Before addressing the legal aspects of the case before us, it would be useful to examine the relevant facts. In September 2005, ‘India Today’ a fortnightly news magazine had conducted a survey on the subject of the sexual habits of people residing in the bigger cities of India. One of the issues discussed as part of this survey was the increasing incidence of pre-marital sex. As a part of this exercise, the magazine had gathered and published the views expressed by several individuals from different segments of society, including those of the appellant. The appellant expressed her personal opinion wherein she had noted the increasing incidence of pre-marital sex, especially in the context of live-in relationships and called for the societal acceptance of the same. However, appellant had also qualified her remarks by observing that girls should take adequate precautions to prevent unwanted pregnancies and the transmission of venereal diseases. This can be

readily inferred from the statement which was published, a rough translation of which is reproduced below: “According to me, sex is not only concerned with the body; but also concerned with the conscious. I could not understand matters such as changing boyfriends every week. When a girl is committed to her boyfriend, she can tell her parents and go out with him. When their daughter is having a serious relationship, the parents should allow the same. Our society should come out of the thinking that at the time of the marriage, the girls should be with virginity. None of the educated men, will expect that the girl whom they are marrying should be with virginity. But when having sexual relationship the girls should protect themselves from conceiving and getting venereal diseases.” These remarks were published alongside a survey, the relevant extracts of which are stated below: “Will you marry a person who had relationship with others? 18% - Yes, 71% - No Is it necessary to be a virgin till the time of marriage? 65% - Yes, 26% - No The remaining percentage of people said: Do not know/Cannot say 82% women had given an opinion that a girl should be a virgin at the time of marriage.” 4. Subsequently, ‘Dhina Thanthi’, a Tamil daily carried a news item on 24.9.2005 which first quoted the appellant’s statement published in ‘India Today’ and then opined that

it had created a sensation all over the State of Tamil Nadu. This news item also reported a conversation between the appellant and a correspondent from ‘Dhina Thanthi’, wherein the appellant had purportedly defended her views in the following manner (rough translation reproduced below): “The persons who are protesting against my interview, are talking about which culture? Is there anyone who does not know about sex in Tamil Nadu? Is there anyone who does not know about AIDS? How many men and women do not have sex before marriage? Why are people saying that after the marriage the husband and wife should be honest and faithful to each other? One should have confidence in the other, only to avoid the mistakes from being committed. If the husband, without the knowledge of the wife, or the wife, without the knowledge of the husband, have sex with other persons, if a disease is caused through that, the same will affect both the persons. It will also affect the children. Only because of this, they are saying like that.” However, soon after the publication of the above mentioned news item, the appellant had sent a legal notice dated 2.10.2005 to the Editor of ‘Dhina Thanthi’, categorically denying that she had made the statement quoted above. In fact, the appellant had asked the publisher to withdraw the news-item carried on 24.9.2005 and to publish her objections prominently within three days of receipt of the notice, failing which the appellant would be constrained to take appropriate legal action against the newspaper.

5. As outlined above, the publication of these statements in ‘India Today’ and ‘Dhina Thanthi’ drew criticism from some quarters and several persons and organisations filed criminal complaints against the appellant. For instance, the complainant in the appeal arising out of SLP (Crl) No. 4010 of 2008 has stated that she is a married woman who is the Treasurer of a District-level unit of the Pattali Makal Katchi [hereinafter ‘PMK’], a political party, and is also involved in social service. She had quoted some parts of the statements published in ‘India Today’ and ‘Dhina Thanthi’ to allege that the appellant’s interview had brought great shame on her since it had suggested that women of her profile had engaged in premarital sex. The complainant further alleged that the appellant’s remarks had caused mental harassment to a large section of women, and in particular women from Tamil Nadu were being looked down upon with disrespect and contempt. 6. In the appeal arising out of SLP (Crl.) 4764 of 2008, the complainant is a male advocate who is a District Secretary of the PMK for Salem District. In his complaint, there is no direct reference to the news-item published in ‘Dhina Thanthi’ on 24.9.2005. Instead the complainant has stated that he found second-hand accounts of the same to be

quite shocking since the appellant had questioned the need for women to maintain their virginity or chastity. It was alleged that these remarks were an abuse against the dignity of the Tamil women and that they had grossly affected and ruined the culture and morality of the people of the State. It was further submitted that these statements could persuade people to involve themselves in unnatural crimes and that the appellant’s acts amounted to commission of offences punishable under Sections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 3 and 4 of Act 1986. Similarly, in the appeal arising out of SLP (Crl.) 6127 of 2008, the complainant is a lady advocate who has been practicing in the Trichy District Courts for more than 10 years. She has quoted some portions from the statements published in ‘India Today’ and ‘Dhina Thanthi’ to submit that the appellant’s acts were punishable under Sections 292, 500, 504, 505(1)(b) and (c), 505(2) and 509 IPC read with Section 6 of Act 1986. 7. Likewise, in the appeal arising out of SLP (Crl.) 6259 of 2008, the complainant has stated that she is a married woman belonging to a reputed family and that she is serving as the President of the District Magalir Association of the PMK (in Thiruvarur) and rendering social service. In her

complaint, some parts of the appellant’s statements have been quoted to allege that she had suffered great mental agony and shame since it was suggested that all women in Tamil Nadu had lost their virginity before marriage. In this respect, the complainant has alleged that the appellant had committed offences punishable under Sections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 6 of Act 1986. It is noteworthy that in most of the other cases filed in various districts of Tamil Nadu, the complainants are functionaries of the PMK and similar allegations have been levelled against the appellant. Oddly enough, one of the complaints had even been filed in Indore, Madhya Pradesh. 8. As mentioned earlier, the appellant approached the High Court of Madras to seek quashing of all the criminal proceedings instituted against her in this connection. In its judgment dated 30.4.2008, the High Court refused to quash the proceedings by exercising its inherent powers under Section 482 Cr.PC, on the premise that the relevant considerations in this case were questions of fact which were best left to be determined by a trial judge. The High Court noted that two basic questions were involved in the case. Firstly, whether the appellant could claim any of the

recognised defences against the allegations of having committed defamation, as contemplated by Section 499 IPC. Secondly, whether the complainants could at all be described as ‘aggrieved persons’ within the meaning of Section 199 Cr.PC since that was linked to the question of whether the complaints had been made in a bona fide manner. The High Court thought it fit to leave both these questions for consideration by a trial judge, and in a partial reprieve to the appellant it was directed that all the criminal proceedings pending against her be consolidated and tried by the Chief Metropolitan Magistrate at Egmore, Chennai. However, the High Court also proceeded to record its own views regarding the contents of the appellant’s statements and even made some strong observations condemning the incidence of premarital sex and live-in relationships. 9. In the proceedings before us, Ms. Pinki Anand, learned counsel appearing for the appellant, has submitted that the complainants (respondents in these appeals) were not ‘persons aggrieved’ within the meaning of Section 199(1)(b) Cr.PC and hence they were not competent to institute private complaints for the alleged offences. It was stated that the appellant had made a fair and reasonable comment

as a prudent person, and therefore, the opinion expressed by the appellant is fully protected under Article 19(1)(a) of the Constitution of India which guarantees freedom of speech and expression to all citizens. Furthermore, it was contended that even if the allegations in the various complaints are taken on their face value and accepted in their entirety, the same do not disclose any offence whatsoever and the opinion of the appellant does not, by any means, fall within the ambit of Sections 499, 500 and 505 IPC or Sections 3 and 4 of Act 1986. It was also canvassed that the criminal proceedings had been instituted in a mala fide manner by the workers of a particular political party, with the intention of vilifying the appellant and gaining undue political mileage. 10. In response, Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman, Adv. and Sh. B. Balaji, Adv. appearing for the respondents, submitted that since the High Court has refused to quash the complaints, this Court should not interfere either since the complaints require determination of factual controversies that are best left to be decided by a court of first instance. They have asserted that the complainants in these cases are mostly women belonging to Tamil Nadu, who were personally aggrieved by the appellant’s remarks.

It was argued that the endorsement of pre-marital sex by a prominent person such as the appellant would have a morally corruptive effect on the minds of young people. Her statement would definitely obscure some basic moral values and expose young people to bizarre ideas about premarital sex, thereby leading to deviant behaviour which would adversely affect public notions of morality. It was contended that the constitutional protection for speech and expression is not absolute and that it is subject to reasonable restrictions based on considerations of ‘public order’, ‘defamation’, ‘decency and morality’ among other grounds. 11. We have considered the rival submissions made by learned counsel for the parties and perused the record. 12. In order to decide this case, it will not be proper for us to either condemn or endorse the views expressed by the appellant. When the criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or writ jurisdiction to intervene with the process of investigation and trial. However, such forms of judicial review can be exercised to prevent a miscarriage of justice or to correct some grave

errors that might have been committed by the subordinate courts. [See decision of this Court in: M/s Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., AIR 1998 SC 128]. In the past, this Court has even laid down some guidelines for the exercise of inherent power by the High Courts to quash criminal proceedings in such exceptional cases. We can refer to the decision in State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604, to take note of two such guidelines which are relevance for the present case :- “(1). Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. … (7). Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 13. It is of course a settled legal proposition that in a case where there is sufficient evidence against the accused, which may establish the charge against him/her, the proceedings cannot be quashed. In M/s Medchl Chemicals & Pharma Ltd. Vs. M/s Biological E. Ltd. & Ors., AIR 2000 SC 1869, this Court observed that a criminal complaint or a charge sheet can only be quashed by superior courts in

exceptional circumstances, such as when the allegations in a complaint do not support a prima facie case for an offence. Similarly, in M/s Zandu Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9, this Court has held that criminal proceedings can be quashed but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid down in the statutory provisions themselves. It was further observed that superior courts “may examine the questions of fact” when the use of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice. In Shakson Belthissor Vs. State of Kerala & Anr., (2009) 14 SCC 466, this Court relied on earlier precedents to clarify that a High Court while exercising its inherent jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate cases. In fact it was observed: “One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint.” 14. There can be no quarrel about this Court’s competence to quash criminal proceedings pending before the

subordinate courts. However, this power must be exercised sparingly and with circumspection. In light of the position summarized above, we can examine the present case with two considerations in mind, namely whether the allegations made against the appellant support a prima facie case for the offences mentioned in the respective complaints, and whether the complaints were made in a bona fide manner. 15. Perusal of the complaints reveals that most of the allegations have pertained to offences such as defamation (Sections 499, 501 and 502 IPC), obscenity (Section 292 IPC), indecent representation of women and incitement among others. At the outset, we are of the view that there is absolutely no basis for proceeding against the appellant in respect of some of the alleged offences. For example, the Act, 1986 was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner. However, this statute cannot be used in the present case where the appellant has merely referred to the incidence of pre-marital sex in her statement which was published by a news magazine and subsequently reported in another periodical. It would defy logic to invoke the offences mentioned in this statute to proceed against the appellant, who cannot be described as an ‘advertiser’ or

‘publisher’ by any means. Similarly, Section 509 IPC criminalises a ‘word, gesture or act intended to insult the modesty of a woman’ and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. Clearly this offence cannot be made out when the complainants’ grievance is with the publication of what the appellant had stated in a written form. Likewise, some of the complaints have mentioned offences such as those contemplated by Section 153A IPC (‘Promoting enmity between different groups etc.,’) which have no application to the present case since the appellant was not speaking on behalf of one group and the content of her statement was not directed against any particular group either. 16. Coming to the substance of the complaints, we fail to see how the appellant’s remarks amount to ‘obscenity’ in the context of Section 292 IPC. Clause (1) to Section 292 states that the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be deemed obscene, if – • It is lascivious (i.e. expressing or causing sexual desire) or

• Appeals to the prurient interest (i.e. excessive interest in sexual matters), or • If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who are likely to read, see, or hear the matter contained in such materials. In the past, authors as well as publishers of artistic and literary works have been put to trial and punished under this section. In the present case, the appellant takes full responsibility for her statement which was published in ‘India Today’, a leading news magazine. It would be apt to refer back to the decision of this Court in Ranjit D. Udeshi Vs. State of Maharashtra, AIR 1965 SC 881, wherein it was held that if a mere reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. It was observed that in the field of art and cinema, the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions, the same are taken for granted without in any way tending to debase or debauch the mind. What is to be considered is whether a class of persons, not an isolated case, into whose hands the book, article or story falls will suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts

aroused in their minds. Even though the decision in that case had upheld a conviction for the sale of a literary work, it became clear that references to sex cannot be considered obscene in the legal sense without examining the context of the reference. 17. This position was later clarified in Samaresh Bose Vs. Amal Mitra, AIR 1986 SC 967, where the Court held that in judging the question of obscenity, the judge in the first place should try to place himself in the position of the author and from the viewpoint of the author, the judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value. Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have on the minds of the reader. 18. There are numerous other decisions, both from India and foreign country which mandate that ‘obscenity’ should be gauged with respect to contemporary community standards that reflect the sensibilities as well as the tolerance levels of an average reasonable person. Owing to the clear

formulation on this issue it is not necessary for us to discuss these precedents at length. In the present case, the appellant has merely referred to the increasing incidence of pre-marital sex and called for its societal acceptance. At no point of time appellant described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader. Furthermore, the statement has been made in the context of a survey which has touched on numerous aspects relating to the sexual habits of people in big cities. Even though this survey was not part of a literary or artistic work, it was published in a news magazine thereby serving the purpose of communicating certain ideas and opinions on the above- mentioned subject. In the long run, such communication prompts a dialogue within society wherein people can choose to either defend or question the existing social mores. It is difficult to appreciate the claim that the statements published as part of the survey were in the nature of obscene communications. 19. We must also respond to the claim that the appellant’s remarks could have the effect of misguiding young people by encouraging them to indulge in premarital sex. This claim is a little far-fetched since the appellant had not

directed her remarks towards any individual or group in particular. All that the appellant did was to urge the societal acceptance of the increasing instances of premarital sex when both partners are committed to each other. This cannot be construed as an open endorsement of sexual activities of all kinds. If it were to be considered so, the criminal law machinery would have to take on the unenforceable task of punishing all writers, journalists or other such persons for merely referring to any matter connected with sex in published materials. For the sake of argument, even if it were to be assumed that the appellant’s statements could encourage some people to engage in premarital sex, no legal injury has been shown since the latter is not an offence. 20. “Offence” means ‘an act or instance of offending’; ‘commit an illegal act’ and illegal means, ‘contrary to or forbidden by law’. “Offence” has to be read and understood in the context as it has been prescribed under the provisions of Sections 40, 41 and 42 IPC which cover the offences punishable under I.P.C. or under special or local law or as defined under Section 2(n) Cr.P.C. or Section 3(38) of the General Clauses Act, 1897 (vide Proprietary Articles Trade

Association Vs. Attorney General for Canada AIR 1931 PC 94; Thomas Dana Vs. State of Punjab AIR 1959 SC 375; Jawala Ram & Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962 SC 1246; and Standard Chartered Bank & Ors. Vs. Directorate of Enforcement & Ors. AIR 2006 SC 1301). 21. While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of ‘adultery’ as defined under Section 497 IPC. At this juncture, we may refer to the decision given by this Court in Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522, wherein it was observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of ‘adultery’), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or “live with anyone she likes”. In that case, the petitioner was a woman who had married a man belonging to another caste and had begun cohabitation with him. The petitioner’s brother had filed a criminal complaint accusing her husband of offences under Sections 366 and 368 IPC, thereby leading to the

commencement of trial proceedings. This Court had entertained a writ petition and granted relief by quashing the criminal trial. Furthermore, the Court had noted that ‘no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court’. 22. It would also be instructive to refer to a decision of the House of Lords (U.K.) in Gillick Vs. West Norfolk and Wisbech Area Health Authority, (1985) 3 All ER 402. In that case, mother of a teenage girl had questioned the decision of the National Health Service (NHS) to issue a circular to local area health authorities which contained guidelines for rendering advice about contraceptive methods to girls under the age of 16 years. Objections were raised against this circular on the ground that the health service authorities had no competence to render such advice and that doing so could adversely affect young children while at the same time interfering with parental autonomy in the matter of bringing up children. The majority decision rejected the challenge against the circular by clarifying that the rendering of advice about contraceptive methods and their provision by medical professionals did not amount to a sexual offence. Among the several aspects discussed in

that case, it was held that the provision of information about contraceptive facilities to girls under the age of 16 years could not be opposed on the ground that such information could potentially encourage more sexual activity by the teenagers. For the purpose of the present case, this decision supports the reasoning that we must fully understand the context and the purpose for which references to sex have been made in any given setting. 23. We now turn to the question whether the appellant’s remarks could reasonably amount to offence of defamation as defined under Section 499 IPC. In the impugned judgment dated 30.4.2008, the High Court observed that as to whether the appellant could claim a defence against the allegations of defamation was a factual question and thus would be decided by a trial Court. However, even before examining whether the appellant can claim any of the statutory defences in this regard, the operative question is whether the allegations in the impugned complaints support a prima facie case of defamation in the first place. It is our considered view that there is no prima facie case of defamation in the present case. This will become self- evident if we draw attention to the key ingredients of the

offence contemplated by Section 499 IPC, which reads as follows: “499. Defamation.- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. Explanation 1. – It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2. – It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3. – An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.- No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. …” (emphasis supplied) The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person

or reasonably know that his/her conduct could cause such harm. Explanation 2 to Section 499 further states that ‘It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.’ 24. With regard to the complaints in question, there is neither any intent on part of the appellant to cause harm to the reputation of the complainants nor can we discern any actual harm done to their reputation. In short, both the elements i.e. mens rea and actus reus are missing. As mentioned earlier, the appellant’s statement published in ‘India Today’ (in September 2005) is a rather general endorsement of premarital sex and her remarks are not directed at any individual or even at a ‘company or an association or collection of persons’. It is difficult to fathom how the appellant’s views can be construed as an attack on the reputation of anyone in particular. Even if we refer to the remarks published in ‘Dhina Thanthi’ (dated 24.9.2005) which have been categorically denied by the appellant, there is no direct attack on the reputation of anyone in particular. Instead, the purported remarks are in the nature of rhetorical questions wherein it was asked if people in Tamil Nadu were not aware of the incidence of

sex. Even if we consider these remarks in their entirety, nowhere has it been suggested that all women in Tamil Nadu have engaged in premarital sex. That imputation can only be found in the complaints that were filed by the various respondents. It is a clear case of the complainants reading in too much into the appellant’s remarks. 25. This takes us to the question of whether the impugned complaints were made in a bona fide manner. As we have already noted, most of the complainants are associated with the PMK, a political party which is active in the State of Tamil Nadu. This fact does add weight to the suggestion that the impugned complaints have been filed with the intention of gaining undue political mileage. It may be reiterated here that in respect of the offence of defamation, Section 199 Cr.PC mandates that the Magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the rational purpose of discouraging the filing of frivolous complaints which would otherwise clog the Magistrate’s Courts. There is of course some room for complaints to be brought by persons other than those who are aggrieved, for instance when the aggrieved person has passed away or is

otherwise unable to initiate legal proceedings. However, in given facts of the present case, we are unable to see how the complainants can be properly described as ‘persons aggrieved’ within the meaning of Section 199(1)(b) Cr.PC. As explained earlier, there was no specific legal injury caused to any of the complainants since the appellant’s remarks were not directed at any individual or a readily identifiable group of people. In M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552, this Court observed as under: “The ‘person aggrieved’ means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. ‘Person aggrieved’ means a person who is injured or one who is adversely affected in a legal sense.” 26. We can also approvingly refer to an earlier decision of this Court in G. Narasimhan & Ors. Vs. T.V. Chokappa, AIR 1972 SC 2609. In that case a controversy had arisen after ‘The Hindu’, a leading newspaper had published a report about a resolution passed by the Dravida Kazhagham, a political party, in its conference held on January 23-24, 1971. Among other issues, the resolution also included the following words: “It should not be made an offence for a person’s wife to desire another man.”

The Hindu, in its report, gave publicity to this resolution by using the following words: “The Conference passed a resolution requesting the Government to take suitable steps to see that coveting another man’s wife is not made an offence under the Indian Penal Code.” A complaint under Sections 499, 500 and 501 IPC was filed in response to this report. Like the present case, the Court had to consider whether the complainant had the proper legal standing to bring such a complaint. The Court did examine Section 198 of the Code of Criminal Procedure, 1898 (analogous to Section 199 of the Cr.PC. 1973) and observed that the said provision laid down an exception to the general rule that a criminal complaint can be filed by anyone irrespective of whether he is an “aggrieved person” or not. But there is a departure from this norm in so far as the provision permits only an “aggrieved person” to move the Court in case of defamation. This section is mandatory and it is a settled legal proposition that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an “aggrieved person”, the trial and conviction of an accused in such a case by the Magistrate would be void and illegal. This Court further noted that the news-item in question did not mention any individual person nor did it contain any

defamatory imputation against any individual. Accordingly, it was held that the complainant was not a ‘person aggrieved’ within the meaning of Section 198 CrPC, 1898. The Court also took note of Explanation 2 to Section 499 IPC which contemplates defamation of ‘a company or an association or any collection of persons as such’. Undoubtedly, the explanation is wide but in order to demonstrate the offence of defamation, such a collection of persons must be an identifiable body so that it is possible to say with precision that a group of particular persons, as distinguished from the rest of the community stood defamed. In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint is not maintainable. In case a class is mentioned, if such a class is indefinite, the complaint cannot be entertained. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution cannot proceed. While deciding the case, this Court placed reliance on the judgment of the House of Lords in Knupffer Vs. London Express Newspaper Ltd. (1944) 1 ALL ER 495, wherein it had been held that it is an essential element of the cause of action for defamation that the words complained of should be published “of the complainant/plaintiff”. Where he is

not named, the test would be whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to. In fact, it is the reputation of an individual person which must be in question and only such a person can claim to have “a legal peg for a justifiable claim to hang on”. 27. Coming back to the facts of the present case, the complainants have alleged defamation in respect of imputations against the character of Tamil-speaking women, which could perhaps be viewed as a class of persons. However, we have already explained, the appellant’s remarks did not suggest that all women in Tamil Nadu have engaged in premarital sex. In fact her statement in ‘India Today’ did not refer to any specific individual or group at all. If we refer to one of the questions asked as part of the concerned survey, one of the answers shows that 26% of the people who responded to the same did not think that it was necessary for women to retain their virginity till the time of marriage. Clearly the appellant was not alone in expressing such a view, even though it may be unpopular or contrary to the mainstream social practices. Even if it were assumed that the news-item carried in ‘Dhina Thanthi’ caused mental agony to some sections of women in Tamil

Nadu, there is no prima facie case for any offence. What is interesting to note is that not all of the complainants are women, and in fact almost all the complainants are associated with a particular political party. 28. We are of the view that the institution of the numerous criminal complaints against the appellant was done in a mala fide manner. In order to prevent the abuse of the criminal law machinery, we are therefore inclined to grant the relief sought by the appellant. In such cases, the proper course for Magistrates is to use their statutory powers to direct an investigation into the allegations before taking cognizance of the offences alleged. It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the ‘freedom of speech and expression’ is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory offence that Magistrates can proceed to take cognizance of the same. We must be mindful that the initiation of a criminal trial is a process which carries an implicit degree of coercion and it

should not be triggered by false and frivolous complaints, amounting to harassment and humiliation to the accused. 29. Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as ‘decency and morality’ among others, we must lay stress on the need to tolerate unpopular views in the socio-cultural space. The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes. Admittedly, the appellant’s remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence.

Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not co-extensive. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant’s remarks. If the complainants vehemently disagreed with the appellant’s views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the ‘freedom of speech and expression’. It would be apt to refer to the following observations made by this Court in S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574, which spell out the appropriate approach for examining the scope of ‘reasonable restrictions’ under Art. 19(2) of the Constitution that can be placed on the freedom of speech and expression:- “ … Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should

have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’. The Court further held: “ … The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man … The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. … Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance of the views of others. Intolerance is as much dangerous to democracy as to the person himself.” 30. Thus, dissemination of news and views for popular consumption is permissible under our constitutional scheme. The different views are allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers. Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non-

conventional morality has to be tolerated as the same cannot be a ground to penalise the author. 31. Before saying omega, it is necessary for us to point out certain unwarranted developments that have taken place ever since the matter was heard till date. In fact, during the course of hearing, certain queries were put to the learned counsel appearing for parties so as to clarify the legal issue involved in the matter but unfortunately, those queries have been highly misunderstood not only by media but also by common man. As a result thereof, we have been flooded with several letter petitions making a prayer for review of the order passed by us. It is pertinent to mention here that no order was passed by us and only during the course of hearing, we had either given some instances or put some questions to the learned counsel which were answered by them. Thus, this hyper active attitude of the common man was, indeed, not called for. Some have even gone to the extent of telling us that we should have known the Indian mythology before putting such question. Thus, whatever we have said during the course of the hearing should be reviewed. We fail to understand how such an attitude could be adopted by those learned persons who were involved in sending various letter petitions to us.

Admittedly, all those persons who have sent letters to us were not present on that particular date but must have gathered information from the print and electronic media which evoked their sentiments to such an extent that they prayed for review. 32. It is, therefore, not only desirable but imperative that electronic and news media should also play positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped. We are saying so as without knowing the reference in context of which the questions were put forth by us, were completely ignored and the same were misquoted which raised unnecessary hue and cry. 33. We hope and trust in future, they would be little more careful, responsible and cautious in this regard. 34. In conclusion, we find that the various complaints filed against the appellant do not support or even draw a prima facie case for any of the statutory offences as alleged. Therefore, the appeals are allowed and the

impugned judgment and order of the High Court dated 30.4.2008 is set aside. The impugned criminal proceedings are hereby quashed. ……………………….CJI. .………………………. J. (DEEPAK VERMA) .………………………. J. (Dr. B.S. CHAUHAN) New Delhi April 28, 2010